The evaluation criteria – The damage, lost earnings – regular causal
The compensation for the damage that has been asked to assess, originates from a non-contractual liability, something quite different from a contractual liability. On this point, discussions of tort or tort-when-there is a violation of a law or a legal situation that absolutely-protected-erga omnes, as he has contractual liability-or failure-when you are in the presence the violation of a right. Consequently, it is used-correctly-damages according to the criterion of “regular payment” pursuant to Art. 1223 Civil Code. and following.
Conversely the criterion of the cd. “Retroversion of profit” to which some will recall, is applicable only in respect of rights titled, ie those covered by Art. 125 Code of Industrial Property. However it should be noted that paragraph 3 of art. 125 CPI, see the application of this criterion only as “alternative” to compensation for loss of profits or “to the extent that they exceed such compensation”, these assumptions must be based on a specific request of the owner of the infringed right.
In fact, I should point out immediately, the institution of damages in intellectual property law is characterized by its duality: that the criteria are different depending on whether the violation of unfair competition interests (as in this case), or if infringe intellectual and industrial property rights (eg trademarks, patents, etc..).
In the first case, which confirms that interests you, doctrine and jurisprudence have always agreed in recognizing the applicability of the single criterion of “causal regularities.”
Jurisprudence and doctrine on this point are clear.
One for all Civil Cassation section. I n October 6, 2008. Soc 24635 Bellatrix C. Soc Strapazzini resins, Foro en. 2009, 3, I, 855 “On the issue of liquidated damages from unfair competition for slavish imitation, since the victim can not obtain compensation in excess of the injury, once it is formed judged based on the criterion of liquidation loss of profit on the victim of the offense, can not be applied – as incompatible – the additional criteria of turnover, and its reported profit, the entrepreneur and the right price Incorrect consensus “, as well as in the Court of Milan, January 4, 2007 (c Hermes / Borri, n. GADI 5126 in 2007) “.. in the field
of unfair competition are unusable criteria for compensation of refund of utli << >> << or >> fair royalty provided for by art. 125 c.p.i. ”
In theory, the relationship of the Ill. M depth. G. Floridia, the proceedings of the conference in Rome on June 23, 2011, as part of the cd. private enforcement in the field of Damages and restitution of the profits of the infringer asserts that, as of interest here:
“When it comes to liquidate the damages awarded to a tort of unfair competition or antitrust law for an offense, in these cases, the damage must be paid only ever evaluated on the basis of a hypothetical judgment how much of the probability of gain compatible with the target market would be created by the hit of illicit if it had not been accomplished and much smaller part has been realized because of the disruption of illicit brought into being. The difference must be attributed to the person so affected that function being realized compensation that is typical of the offenses arising – as mentioned – the incompatibility of the modal behavior in place. ”
Even the Supreme Magistrate M. Scuffi (already authoritative Specialized in Industrial Property Section of the Court of Milan) is expressed in this regard, as saying “Once you know that the ontological existence of the damage and the cause-effect link that connects it to the offense, the settlement will have ‘ deal with its typical components of damage and lost profit discernible possibly supplemented by other forms of prejudice such as loss of business opportunity (CAMilano, December 24, 1996 Telsystem c / SIP) and / or damage to the image (CAMilano, 11 Bluvacanze July 2003), with the possible use of the technique of separation of procedural from that judgment on the amount of AN debeatur waves reach the cd generic sentence subject to quantify the damages-even by CTU-.. The actual damage in its traditional interpretation, has no particular application problems jackets’ existence and consistency of financial loss can be easily demonstrated with various documents and printouts.
Common to all unfair competition – for example-are costs incurred by the firm to obtain the evidence of the offense including the costs of legal and technical assistance (expert reports, affidavits, market research etc..). It must also count the costs of removing illegal neutralize the destructive effects arising from it as the greatest amount aliunde to find the goods unlawfully denied.
They should therefore be considered as well as business losses for the costs incurred in projects of aggressive marketing in the normal conduct undermined by monopolistic competition prevaricanti implemented by third parties in violation of antitrust laws, so ‘pure charges wasted on a design business that could not find an outlet for anti-competitive conduct that has prevented quell’operosita’ needed to lead to useful results.
More problematic are the true presents reconstruction of lost profit, given the varied pose anti-competitive effects involving appropriate use of flexible rules of reason is not always reliable drivers to economic performance. Not by chance in the quantification of the damage often comes into play the equitable assessment provided a general art.1226 cc referred to in Article d.c. .2056 “.
Among the evaluation criteria, dr. M. Scuffi indicates three possibilities:
a) requires a comparison between the financial position of the victim is presented as a result of the offense and the purely hypothetical that would be determined in his absence;
b) historical comparison requires the confrontation of profits before (before) and after (after) the offense provided that the two reference periods (base period and damage period) are reliably and sufficiently comparable in the absence of factors unrelated to anti-competitive action in cases of others who have contributed to the compression of the economic performance of the victim.
c) comparing the ideal requires comparison of the profits made by the damage after the offense with those of another company with similar characteristics but remained immune from anti-competitive practices.
These criteria, again as part of “actual damage/loss of earnings” are used alternately in different circumstances to be evaluated.